Saturday, February 05, 2005

Flipping Paulding:Judge Chatigny Syndrome and Michael Ross

It seems only yesterday that Michael Ross – a supremely narcissistic fellow according to one psychiatrist – had convinced all the relevant courts that, yes, he did want to be executed and, no, he was not incompetent.

But that was before U. S. District Superior Court Judge Robert Chatigny, whose decisions in the Ross case were three times rebuffed by appellate courts, got on the phone and, fortified with information provided by several lawyers whom the appellate courts determined had no standing in the case, flipped Ross’ lawyer, T. R. Paulding.

What a difference a day makes.

Chatigny having threatened to deprive Paulding of his law license should it be determined at some point in the future that Ross was incompetent to forego further appeals, Paulding prove most obliging. The day after Chatigny threatened to deprive Paulding of his livelihood, Ross’ defense lawyer threw in the towel. Citing a “conflict of interest,” Paulding consulted with his client, who agreed to a new competency hearing during which “death row syndrome” would be addressed.

Paulding described the conflict of interest as a disparity between Ross’ interest in foregoing further appeals and his own responsibility in presenting to the court any and all relevant evidence.

Chatigny was instantly proclaimed courageous by anti-death penalty agitators. Immediately after Paulding’s curtsey in the direction of Chatigny, Connecticut’s judiciary committee, studded with some of the state’s most persistent death penalty abolitionists, held a hearing during which a number of people fulminated against the death penalty and urged that it be replaced by life terms in prison without parole for serial killers such as Ross. Family members of Ross’ victims, much in the news lately, did not speak to the legislators or offer an opposing and balanced view.

The struggle to end the death penalty as we know it in Connecticut has now begun.

It is not often that an appellate judge is able, through threats and expostulations, to effectively subvert the decisions of higher court justices. This unprecedented turn of events raises a number of questions.

It must be presumed that Ross’ interests did not disappear when, following Chatigny’s harangue, Paulding decided to arrange a new competency hearing. Ross still wants to forego his appeals. Chatigny and the half dozen lawyers who flipped Paulding during their phone conference have insisted that Ross is not competent to make such decisions.

If Ross’ interests remain the same as they were before Paulding assented to a competency hearing, who is to represent his interests?

Is Paulding any longer capable of advocating in favor of Ross’ competence? The question is especially pertinent because Paulding has said that a review of new information provided by some of the lawyers who participated in the teleconferencing call initiated by Chatigny had convinced him that a new hearing on Ross’ competence was necessary. Do Paulding’s doubts undermine his effectiveness as an advocate for Ross’ interests?

Do the doubts entertained by Paulding extend to Ross’ ability to waive his right to refuse such a hearing? If Ross, by reason of mental deficiency, is incapable of making a rational decision to forego appeals, why is he presumed capable of making an informed decision to agree to a hearing on his competence?

The current position of the anti-death penalty crowd is that Ross is suffering from death row syndrome. Despite Chatigny’s assertion that he is conversant with current literature on the subject, the psychological disorder has only recently made its appearance in courts as a rational for overturning death penalties both in Europe and the United States.

The syndrome may kick in at any time, leaving its victims incompetent at a moment of maximum advantage – for lawyers and others who favor the abolition of the death penalty.

When Ross last appeared in Judge Patrick Clifford’s court and agreed to a hearing on his competence, he appeared to be the most mentally agile person in the room.

"I will participate in any competency hearing this court orders, to protect his license,” said Ross, referring to Paulding. "That's the only reason I'm doing it. (Chatigny) put a guilt trip on him, that's what this is all about, and it's wrong.”

Judge Clifford – whose decision in the case, supported by a Supreme Court decision, was effectively reversed by Chatigny’s intervention -- also offered his condolences to Paulding.

"I apologize from the bench," Clifford said. "It's been a difficult time for you. You've been criticized by your fellow defense lawyers and threats of the loss of your law license by a federal judge. It's a very difficult situation."

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